Kerala High Court
M.P.Somanathan Nair vs State Of Kerala on 23 January, 2025
2025:KER:5575
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
CRL.APPEAL NO. 116 OF 2008
AGAINST THE JUDGMENT DATED 27.12.2007 IN CC NO.7 OF 2004
OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
M.P.SOMANATHAN NAIR
S/O.PRABHAKARAN NAIR, ADAYATH HOUSE,,
PANAVALLY, CHERTHALA, FORMERLY SPECIAL
TAHSILDAR, INDUSTRIAL GROWTH, CENTRE,
ALAPPUZHA.
BY ADVS.
SRI.B.RAMAN PILLAI
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
SRI.SUJESH MENON V.B.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2025:KER:5575
2
Crl.Appeal No.116 of 2008
SMT REKHA S, SR.PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR(VIG)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 10.12.2024, THE COURT ON 23.01.2025 DELIVERED
THE FOLLOWING:
2025:KER:5575
3
Crl.Appeal No.116 of 2008
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.Appeal No.116 of 2008
-----------------------------------------------------------
Dated this the 23rd day of January, 2025
JUDGMENT
The appellant was convicted and sentenced for an offence
punishable under Section 7 of the Prevention of Corruption Act,
1988 (PC Act) by the Enquiry Commissioner and Special Judge,
Thiruvananthapuram as per the judgment dated 27.12.2007 in
C.C.No.7 of 2004. The said judgment is impugned in this appeal
filed under Section 374(2) of the Code of Criminal Procedure,
1973 (Code).
2. The appellant was working as the Special Tahsildar
(LA), Industrial Growth Centre, Cherthala during the relevant
period. Two items of land belonging to PW2 were acquired for
the purpose of the Industrial Growth Centre, Cherthala. In
respect of the first lot of 14.39 Ares of land in Sy.No.188/6-2,
a compensation of Rs.2,26,876/- was awarded and the
cheque in that regard was issued to PW2 on 17.01.2001. It is
alleged that the appellant demanded and received an illegal
2025:KER:5575
gratification of Rs.2,000/- for issuing that cheque. The
compensation awarded for the second lot of land of 18.39
Ares comprised in Sy.No.188/6-1 of Pallippuram Village was
Rs.48,057/-. Since one Kesavan Nair had possession of a
portion of that land deducting the compensation amount of
Rs.2,537/- due to him, a cheque for Rs.45,520/-, the amount
of compensation due to PW2, was drawn. Notice under
Section 12(2) of the Land Acquisition Act, 1894 was issued to
PW2 to appear and receive the cheque on 28.04.2001. It is
alleged that the appellant purposefully delayed issuance of the
cheque and when PW1, who is the son-in-law of PW2,
approached the appellant on 06.05.2001, he demanded a
gratification of Rs.1,500/-. On intimating that matter, PW12-
Deputy Superintendent of Police, VACB, Alappuzha registered
crime No.3 of 2001 and laid a trap. Tainted currency notes
worth Rs.1,500/- was entrusted with PW1, and as instructed
by the appellant, he reached the office at about 7.00 p.m. on
18.05.2001 and paid the said amount to him. PW12 recovered
the said currency notes from the shirt pocket of the appellant
2025:KER:5575
in the presence of witnesses and the phenolphthalein test
turned positive. The prosecution was therefore initiated
against the appellant under Sections 7 and 13(1)(d) read with
Section 13(2) of the PC Act.
3. When the charge was framed and read over, the
appellant pleaded not guilty. The prosecution therefore
examined PWs.1 to 13 and proved Exts.P1 to P31. MO1 series
and MOs.2 to 6 were identified. After closing the prosecution
evidence, the appellant was questioned under Section 313(1)
(b) of the Code. He denied the incriminating circumstances
appeared in evidence against him. He pleaded innocence and
submitted that the currency notes were thrusted to his pocket
by PW1 and he was falsely implicated. DWs.1 and 2 were
examined and Exts.D1 and D2 were marked on his side.
4. The trial court after analysing the evidence found
the appellant not guilty of the offence under Section 13(1)(d)
punishable under Section 13(2) of the PC Act, but found him
guilty of the offence under Section 7 of the PC Act. On
conviction, the appellant was sentenced to undergo rigorous
2025:KER:5575
imprisonment for a period of one year. The said conviction and
sentence are challenged in this appeal.
5. Heard the learned counsel for the appellant and the
learned Senior Public Pleader.
6. The appellant was the Special Tahsildar (LA),
Industrial Growth Centre, Cherthala during the relevant
period. That fact is not disputed. The evidence tendered by
the prosecution proved that fact as well. Two instances of
receiving illegal gratification by the appellant were alleged.
One was, accepting Rs.2,000/- in relation to issuance of a
cheque for Rs.2,26,876/- to PW2, which was the
compensation for acquisition of an extent of 14.39 Ares of
land comprised in Sy.No.188/6-2 of Pallippuram Village. The
second was regarding receipt of gratification of Rs.1500/-
from PW1 for issuing a cheque for Rs.45,520/- to PW2 as
compensation for acquisition of his 18.39 Ares of land
comprised in Sy.No.188/6-1 of Pallippuram Village. The first
incident was attempted to be proved by the prosecution with
the help of oral testimonies of PWs.1 and 2. The trial court
2025:KER:5575
did not believe their evidence in that regard and
accordingly found the appellant not guilty in relation to that
charge.
7. Evidence tendered by PWs.1 and 2 concerning
demand for bribe the appellant allegedly had made on
06.05.2001 for issuance of cheque for Rs.45,520/- was
disbelieved by the trial court. However, the oral testimony of
PW1 regarding payment of Rs.1,500/- as illegal gratification to
the appellant on 18.05.2001 based on the trap laid by the
VACB was believed by the trial court. The trial court took into
account essentially the evidence tendered by PW3 and PW12
and Ext.P20 mahazar, besides other attending circumstances
as corroborative evidence. It was held that even if demand for
illegal gratification at a prior point of time was not proved, the
aforesaid evidence proved beyond doubt the demand of bribe
the appellant made to PW1 on 18.05.2001 and receipt of the
tainted notes for Rs.1,500/-. The presumption available under
Section 20 of the PC Act also was taken in aid of reaching
such a finding and conviction.
2025:KER:5575
8. Assailing the findings of the trial court, the learned
counsel for the appellant submitted that when PWs.1 and 2
were disbelieved insofar as the demand for bribe on
06.05.2001, no reliance could be placed on the rest of their
evidence. It is submitted that other than the oral testimony of
PW1, no evidence is available to show that there was a
demand for bribe from the part of the appellant. The evidence
of PWs.4, 5 and 6 proved that there were quarrels between
PW2, who is the owner of the acquired property and the
appellant in relation to the sufficiency of compensation. It is
further pointed out that DW2, a retired village officer, deposed
about the plan of PW2 to falsely implicate the appellant in a
case. Further, it is pointed out that there was no inordinate
delay in giving cheque of compensation amount to PW2. It is
contended that in the light of the said facts and
circumstances, false implication of the appellant is quite
apparent. It is also submitted that since there is absolutely no
evidence to prove a demand by the appellant, a conviction
under Section 7 of the PC Act could not be had. In this regard
2025:KER:5575
the learned counsel for the appellant placed reliance on the
decision of the Apex Court in Neeraj Dutta v. State
(Govt.of NCT of Delhi) [AIR 2023 SC 330] and of this
Court in Ahammed Nizar C.H. v. State of Kerala [2023
(3) KLT 363].
9. The learned Senior Public Prosecutor defended the
judgment. It is submitted that there is overwhelming evidence
to prove receipt of tainted notes by the appellant and that the
recovery was duly proved, and therefore a presumption under
Section 20 of the PC Act is available. From the turn of events
as proved by the evidence tendered by the prosecution,
purposeful delay in issuing the cheque to PW2 is discernible.
There is no reason to disbelieve the evidence tendered by
PW1 regarding demand and receipt of gratification, which is
corroborated by Ext.P1 and other attending circumstances.
The learned Public Prosecutor accordingly would submit that
the demand and receipt of illegal gratification by the appellant
are proved beyond doubt and hence there is no reason to
interfere with the impugned judgment.
2025:KER:5575
10. Although it was alleged that the appellant
demanded and accepted Rs.2,000/- as illegal gratification for
issuance of the first cheque for Rs.2,26,876/-, that allegation
was not proved. In view of that finding of the trial, the
question involved in the appeal is confined to the second
allegation that the appellant received illegal gratification of
Rs.1,500/- for issuance of cheque of Rs.45,520/-.
11. Ext.P5 is the notice issued to PW2 intimating that the
cheque for Rs.45,520/- was ready and the same would be
delivered to him on 28.04.2001. The allegation is that the
appellant did not issue the cheque although PW2 had approached
him and therefore PW1 intervened in the matter. He is the son-
in-law of PW2. It is the version of PW1 that on 06.05.2001 when
he met at his office, the appellant made a demand for Rs.1,500/-
to issue the cheque. He intimated the matter to PW2 and in
terms of their resolution, they approached PW12, the Dy.S.P.,
VACB, Alappuzha and told about the said demand. It is the
further version of PW1 that he contacted the appellant on the
morning of 18.05.2001 and then he told PW1 to come to his
2025:KER:5575
office at 7.00 p.m. in the evening. Following that, PW1 along with
PW2 went to the office of PW12 and lodged Ext.P1 complaint.
After registering the crime vide Ext.P2, PW12 had made
arrangements for laying the trap. Rs.1,500/- composing currency
notes of Rs.1,000/- and Rs.500/- given by PW2 were tainted with
phenolphthalein powder and entrusted to PW1 to hand over to
the appellant. As planned, PW1 went to the office of the
appellant in the evening and after his handing over the tainted
currency notes to the appellant, PW12 along with other officials
and witnesses reached there and recovered the currency notes
from the shirt pocket of the appellant.
12. PW12 deposed in detail about registration of the
crime and the process of laying the trap and recovery of
Rs.1,500/- from the possession of the appellant. MO1 series
are the said currency notes. It is his version that the appellant
took out the currency notes from his pocket and handed it
over. Besides MO1 series, the appellant had with him
Rs.1,460/-. The phenolphthalein test held in the presence of
the witnesses turned positive and thereafter PW12 arrested
2025:KER:5575
the appellant. Ext.P20 is the mahazar prepared by PW12 for
the seizure of MO1 series.
13. PW3 is a witness to the recovery. He was the
Assistant Registrar at the District Industrial Centre,
Alappuzha. He along with another official was brought to the
office of the appellant in order to witness the seizure. PW3
was present at the time when PW12 recovered MO1 series
from the possession of the appellant. In his presence the
phenolphthalein test was conducted and a positive result
enured. Besides the tainted notes, an amount of Rs.1,460/-
was also seized from the possession of the appellant. In the
contemporaneous mahazar, Ext.P20 prepared by PW12, he
has signed as well.
14. PWs.4 and 6 were members of staff in the office of
the appellant. PW4 and PW6 were U.D.Clerks in that office. As
regards the incident of seizure of Rs.1500/- from the
possession of the appellant and his arrest, they have deposed
before the court, but not supporting the entire case of the
prosecution. They admitted their presence in the office at that
2025:KER:5575
time. They explained that there was heavy workload and
hence they were present in the office even at that late
evening time. Only after vigilance personnel came inside, they
noticed the incidents transpired. Both of them deposed that
Ext.P20 mahazar was prepared at the room of the appellant
and the same was subscribed by them. Of course, they denied
having seen PW1 entering the room of the appellant. They
also failed to state about the details of the recovery and
conducting of the phenolphthalein test, etc. In that respect,
they deposed against the case of the prosecution by resiling
from their statement in police. However, their evidence that
the appellant was arrested and Ext.P20 mahazar was
prepared by the vigilance personnel after arresting the
appellant is liable to be accepted and relied on. They were
the most natural witnesses and their version to the above
extent goes in tandem to the other evidence that MO1 series
were recovered from the possession of the appellant at or
about 7.00 p.m. on 18.05.2001. The version of PW12, who
effected recovery, is sufficiently corroborated by the oral
2025:KER:5575
testimonies of PWs.1, 3, 4 and 6. The prosecution has thus
succeeded in proving that MO1 series, which are the tainted
notes entrusted by PW12 with PW1 were recovered from the
possession of the appellant. The prosecution still has to prove
the demand as well as the voluntary acceptance of the money
by the appellant for a conviction.
15. The Apex Court in Neeraj Dutta (supra) held that
in order to prove an offence under Section 7 of the PC Act, the
prosecution has to prove beyond doubt that the accused
voluntarily accepted money, knowing it to be a bribe. The
Apex Court proceeded to hold that the prosecution should also
prove that there was demand for illegal gratification. The Apex
Court proceeded to hold that once the basic facts of the
demand and acceptance of illegal gratification are proved, the
presumption under Section 20 of the PC Act can be drawn. A
learned Single judge of this Court in P.A.Hariharan v. State
of Kerala [2021 (3) KHC 85] following the said principle of
law. It was held that for drawing a presumption under Section
20 of the PC Act with regard to the demand of illegal
2025:KER:5575
gratification, the prosecution should prove foundational facts,
for which it can resort to both direct and circumstantial
evidence. Bearing the said principle of law in mind, I shall
consider whether the prosecution proved the demand of illegal
gratification and voluntary acceptance thereof.
16. The sole witness who can say about the demand
by the appellant for gratification is PW1. As stated, MO1
series was recovered from the appellant. His case is that he
did not demand any bribe, but for falsely implicating him in a
case, PW1 forcibly inserted MO1 currency notes in his
pocket. The reason for foisting such a case is stated to be
the ill-will PW2 was nurturing against the appellant since he
did not oblige to the demand for enhanced compensation.
The learned counsel for the appellant in that context pointed
out the contradictions in the evidence of PW1 and also the
inconsistencies between the oral testimonies of PW1 and 2.
The evidence has come on record that PW2 persistently
demanded and pressured the appellant; even through
others, for enhanced compensation.
2025:KER:5575
17. The definite version of PW1 is that the appellant
demanded bribe on 06.05.2001, which was a Sunday. It was
improbable that the appellant would be in office on a Sunday.
No evidence is there to support that on such a Sunday the
appellant attended the office. About the time when PW1 met
the appellant on the said day, there is no clarity. PW1 changed
his version repeatedly by saying it was in the morning and
changing it as afternoon. It may be noted that PW1 did not
know much about the acquisition and he intervened in the
matter only as instructed by PW2. He explained the reasons
for the same as the appellant and others in his office did not
like PW2 owing to the disputes that occurred concerning the
quantum of compensation. Based on the information passed
on by PW1 regarding demand for bribe only, PW2
accompanied PW1 to the vigilance office on 18.05.2001. In
the said circumstances the evidence of PW1 regarding the
demand for bribe by the appellant becomes doubtful.
18. Following registration of crime vide Ext.P2,
currency notes were tainted with phenolphthalein and
2025:KER:5575
entrusted with PW1. It is obvious from the aforementioned
evidence that acting upon the words of PW1 alone, PW12 had
laid the trap. During the examination in court, PW1 has stated
that the amount demanded was Rs.5,000/-. He immediately
changed the version and stated that it was Rs.1,500/-. PW1
himself went to the room of the appellant. True, the version of
PW1 that he contacted the appellant in the morning of
18.05.2001 over telephone, is admitted by the appellant. He,
however, has a definite case that the conversation was
concerning issuance of the cheque and nothing more. The sole
testimony of PW1 in respect of the payment of money in
consequence of a demand requires scrutiny in juxtaposition to
the above circumstances.
19. Although PW3 went along with PW1 bear to the
office of the appellant, he was not in a position to overhear
the conversation inside the room. Immediately on coming out
and giving signal by PW1, PW12 and others entered the room
of the appellant and recovery effected. Of course, there was a
positive result in the phenolphthalein test. The right fingers
2025:KER:5575
and shirt pocket of the appellant turned pink. Regarding
payment of money PW1 stated that without making a
demand, he paid MO1 series. On asking about the money, the
appellant took out MO1 series from his shirt pocket and
handed it over. An inference that the appellant would have
received MO1 series voluntarily is probable. It can be said that
if the money was thrusted in his pocket, he would have made
an alarm, making his protest public. However, in this case,
such an inference may not be appropriate in the absence of
any other circumstance to probabilise the voluntary
acceptance. Immediately on PW1 coming out of the room,
PW12 and others reached and intercepted the appellant.
Therefore, before reacting itself, the appellant was
approached by PW12. In that context, the statement of PW1
that he paid the money to the appellant even without asking
for, assumes importance.
20. The learned counsel for the appellant pointed out
the version of DW2 that he was told by PW2 about teaching
the appellant a lesson. It can be said that a person who
2025:KER:5575
comes at the fag end of the trial and makes such a statement
can be approached with a pinch of salt only. However, the fact
remains that PW2 had an axe to grind against the appellant.
The evidence of PW1 regarding demand for gratification and
its voluntary acceptance by the appellant is not fully reliable.
In such circumstances, it is not possible to say that the
evidence brought on record by the prosecution proved beyond
a reasonable doubt that there was a demand for gratification
by the appellant. The unassailable evidence regarding
recovery cannot, in the absence of proof regarding a demand
and voluntary acceptance of the gratification, lead to a
conviction. Hence, I find that, even with the aid of Section 20
of the PC Act, the evidence adduced by the prosecution is not
enough to establish the charge against the appellant.
21. Viewed in the light of the law laid down in
Neeraj Dutta (supra) the conclusion is irresistible that the
charge against the appellant regarding commission of the
offence under Section 7 of the PC Act is not proved beyond a
reasonable doubt. He is entitled for the benefit of doubt.
2025:KER:5575
Accordingly, this appeal is allowed. The appellant is
acquitted by setting aside the impugned judgment. He is set
at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
